Osman Aguilar-Osorio v. Merrick Garland, 991 F.3d 997

Background

Petitioner Osman Alfredo Aguilar-Osorio, a Honduran national, was present at a 2005 robbery, later received an anonymous threatening/extortion letter, never reported the incidents to police, and alleges other witnesses were later killed.
Aguilar-Osorio had a 2001 NTA; he previously had an in absentia removal that was reopened; he admitted the NTA’s allegations in reopened proceedings and sought withholding of removal, CAT protection, and a remand to seek cancellation of removal based on his LPR mother’s hardship.
The IJ declined to formally admit the 2016 U.S. State Department Honduras Country Report into the record (but the IJ took judicial notice of it); the BIA’s decision did not address or explain treatment of that Report.
The BIA denied (1) his motion to terminate/remand for lack of jurisdictional vesting (based on NTA); (2) his motion to remand to seek cancellation for hardship; (3) withholding of removal based on a proposed particular social group of “witnesses who could testify against gang members”; and (4) CAT relief, concluding no past torture with official acquiescence and insufficient evidence of future torture.
Ninth Circuit: affirmed most of the BIA’s rulings (jurisdictional and withholding/CAT past-torture holdings), held it lacked jurisdiction to consider some arguments raised for the first time, dismissed review of the hardship/cancellation discretionary denial, but remanded the CAT claim to the BIA for reconsideration because the administrative record’s treatment of the Country Report was unclear.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ lacked jurisdiction because the 2001 NTA omitted hearing date/time or because Aguilar-Osorio never received Notice of Hearing	NTA omission (and alternative: never received Notice of Hearing) meant jurisdiction never vested; proceedings should be terminated	IJ/BIA: arguments not properly preserved below; precedent allows proceedings despite NTA omissions when later proceedings cure defects	Court: rejected omission argument as foreclosed by precedent; lacked jurisdiction to consider the never-received-Notice argument raised for first time here (no exhaustion)
Whether BIA erred by denying remand to seek cancellation of removal based on exceptional and extremely unusual hardship to his LPR mother	Remand required because BIA failed to consider relevant evidence and due process was violated	Government: BIA’s denial of discretionary cancellation remand is not reviewable on the merits; no record evidence showing BIA ignored relevant evidence	Court: lacked jurisdiction to review the merits of the hardship/cancellation denial; no evidence BIA ignored relevant evidence; dismissal of this claim
Whether petitioner’s proposed particular social group (witnesses who could testify against gang members) is cognizable for withholding of removal	Proposed PSG includes witnesses threatened for cooperating with justice; qualifies as a social group	Government: group is overbroad, lacks discrete/definable boundaries and social distinctiveness	Court: agreed with BIA/IJ that group is not cognizable and petitioner failed to show social recognition; withholding denied
Whether CAT relief should be remanded because the IJ judicially noticed the Country Report but the BIA did not address it	Report shows pervasive violence and supports future torture claim; BIA’s silence leaves inadequate record	Government: Report was not properly in the administrative record; BIA not required to consider non‑record materials (Fisher)	Court: affirmed BIA’s finding that past torture lacked official acquiescence; but remanded CAT claim to BIA for reconsideration because IJ treated the Country Report as part of the record while the BIA neither considered nor explained its omission, leaving the court without an adequate basis to evaluate the future-torture claim

Key Cases Cited

Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (NTA omission precedent regarding jurisdictional vesting)
Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020) (NTA omission precedent reiterated)
Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004) (exhaustion requirement for claims raised on appeal)
Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (limitations on taking judicial notice of country reports not in the administrative record)
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (cognizable PSG of witnesses who testified in open court against gang members)
Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013) (standard of review for PSG/cognizability)
Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (CAT substantial-evidence review weighing individualized facts against country reports)
Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (generalized country conditions insufficient for CAT)
INS v. Elias-Zacarias, 502 U.S. 478 (1992) (substantial-evidence standard for agency factual findings)
Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. 2005) (nonreviewability of discretionary cancellation decisions)